State ex rel. Robbins v. City of Jackson

• Decision Date: 16 May 1966
• Citation: 22 McCanless 322,218 Tenn. 322,403 S.W.2d 304
• Parties: , 218 Tenn. 322 STATE of Tennessee, ex rel. A. L. ROBBINS, Jr., et al., Appellants, v. The CITY OF JACKSON, Tennessee, etc., Appellee.
• Court: Tennessee Supreme Court

Page 304

403 S.W.2d 304

22 McCanless 322, 218 Tenn. 322

STATE of Tennessee, ex rel. A. L. ROBBINS, Jr., et al., Appellants, v. The CITY OF JACKSON, Tennessee, etc., Appellee.

Supreme Court of Tennessee.

May 16, 1966.

Walter C. Drake, Jackson, for appellants.

Russell Rice, City Atty., and Roger Murray, Jr., Asst. City Atty., Jackson, for appellee.

OPINION

CRESON, Justice.

This appeal comes from the Circuit Court of Madison County, Tennessee. Suit was filed on August 24, 1965, by appellants here, seeking to enjoin the appellee City from annexing a large area of land and approximately 1,500 citizens into the corporate limits of the City of Jackson. The trial judge, without the intervention of a jury, found in favor of the appellee, and the appellants timely effected their appeal to this Court. Appellants assign as error the following:

'Error No. I:

That the Learned Trial Court erred in holding that there had been substantial compliance with the Tennessee Code Annotated sections 6--308; 6--309, in that the notice of five days rather than seven was substantial compliance with the law and that the said code section as to notice was advisory. (R--44) That the appellants were deprived of a hearing in which all the parties affected could be heard in regard to the proposed annexation (R--29 & 62) (R--75) (R--81) (R--86) (R--136).

Error No. II:

That the Learned Trial Court erred in holding that the plan of services proposed and adopted for the area proposed to be annexed is reasonable (R--46). That the City does not have any plans to provide adequate and neighborhood schools for the area annexed. (R--132) (R--184) nor does the City plan to provide sewerage service within a reasonable time (R--143) (R--156--7) (R--111--112).'

Appellants' first Assignment of Error requires a review of the record, which is largely undisputed on this question. This action was brought under T.C.A. Sec. 6--310, which provides 'any aggrieved owner of property lying within territory which is the subject of an annexation ordinance prior to the operative date thereof, may file a suit in the nature of a quo warranto proceeding in accordance with §§ 6--308--6--320 and chapter 28 of title 23, to contest the validity thereof on the ground that it reasonably may not be deemed necessary for the welfare of the residents and property owners of the affected territory and the municipality as a whole and so constitutes an exercise of power not conferred by law.' The appellants here live within an area that the City of Jackson has undertaken to annex by ordinance, as provided in T.C.A. Sec. 6--309, which is as follows:

'Annexation by ordinance.--A municipality when petitioned by a majority of the residents and property owners of the affected territory, or upon its own initiative when it appears that the prosperity of such municipality and territory will be materially retarded and the safety and welfare of the inhabitants and property thereof endangered, after notice and public hearing, by ordinance, may extend its corporate limits by annexation of such territory adjoining its existing boundaries as may be deemed necessary for the welfare of the residents and property owners of the affected territory as well as the municipality as a whole, provided said ordinance shall not become operative until thirty (30) days after final passage thereof.

Provided, however, that before any territory more than one-fourth (1/4) square mile in area or having a population of more than five hundred (500) persons may be annexed under this section, the governing body of the municipality shall adopt a plan of service setting forth at a minimum the identification and projected timing of municipal services proposed to be extended into the territory proposed to be annexed. Provided, further, that before any such plan of service shall be adopted, it must have been submitted to the local planning commission, if there be such, for study and a written report, to be rendered within ninety (90) days after such submission, unless by resolution of the governing body a longer period is allowed. Acts 1955, ch. 113, § 2; 1961, ch. 320, § 1.)'

In initiating this proposed annexation the City Council caused to be published in The Jackson Sun, a newspaper of general circulation in the municipality, an advertisement which advised that there would be a public hearing on July 30, 1965, to consider annexation of the involved territory. Prior to that, on July 23, 1965, The Jackson Sun published an extended and front page news article referring to the proposed annexation and public hearing to be had in this connection. The article set forth the area to be included in the proposed annexation. The trial judge found that these two published articles constituted substantial compliance with the notice requirements set forth, as follows, in T.C.A. Sec. 6--308:

'Annexation of territory--Definitions.--* * * (c) the term 'notice' shall mean publication in a newspaper of general circulation in the municipality at least seven (7) days in advance of a hearing.'

In light of ...